Summary:
The claimant suffered from cellulitis caused by bacteria. It occurred
at three different sites on his body and he believes that it was due to
spider bites while he was working even though he did not see any spiders
while working and was not aware he had been bitten.

Held:
While it is possible that the claimant was bitten by spiders at work,
he has failed to demonstrate on a more-likely-than-not basis that he was
in fact bitten at work and that his cellulitis was due to such bites.

Topics:

Proof: Burden of
Proof. A claimant must show more than a mere possibility that
an industrial accident occurred.

¶1 The trial in this matter
was held in Helena, Montana, on June 25, 2004. Petitioner, Stephen M.
Peters, was present and represented himself. Respondent was represented
by Thomas E. Martello.

¶2 Exhibits: Exhibits
1 through 4 were admitted without objections.

¶3 Witnesses and Depositions:
Petitioner and Kevin Bartsch testified. No depositions were submitted.

¶4 Issues Presented:
The sole issue presented for decision is whether the claimant suffered
a work-related injury on August 20, 2003.

¶5 Having considered the Pretrial
Order, the testimony presented at trial, the demeanor and credibility
of the witnesses, the exhibits, and the arguments of the parties, the
Court makes the following:

FINDINGS OF FACT

¶6 On August 20, 2003, petitioner
(hereinafter "claimant") was working as a laborer for Northside Welding,
Inc. He was working on a construction site at the Nevada Reservoir located
near Helmville, Montana.

¶7 While working on the Nevada
Reservoir project, the claimant slept at night in his car, in a friend's
camper, or at a labor union facility near the Lewis and Clark County Fairgrounds.

¶8 While working on Thursday,
August 21, 2003, the claimant noticed a small red mark on his left knee.
At the time, he thought it looked like a "sliver." (Trial Test.)

¶9 He worked Friday, August
22, 2003. On that day he noticed a red spot on his right elbow.

¶10 On Sunday, August 24, 2003,
the claimant's knee was swollen and he felt ill.

¶11 The claimant returned to
work on Monday, August 25, 2003. However, he was limping due to pain and
swelling in his left knee. His employer urged him to seek medical care.

¶12 The claimant then went
to the emergency room of St. Peter's Hospital in Helena, where he was
seen by Dr. D. L. Kuntzweiler. Dr. Kuntzweiler diagnosed cellulitis of
the left knee, right elbow, and forehead and prescribed antibiotics, including
intravenous antibiotics. The cellulitis was cultured and the infection
identified as gram negative staphylococcus aureus.

¶13 As a result of the infection,
the claimant was off work for nine days and incurred medical expenses
for his treatment.

¶14 At the time he sought medical
care, the claimant believed he had been bitten by spiders at work, however,
he did not recall seeing any spiders or being aware of any bite. Dr. Kuntzweiler
wrote in his medical note of August 25th, "Mr. Peters thinks
he has been bitten by spiders, although as it turns out, he has actually
not seen any spiders, but in the last week he has developed sores on several
spots. " (Ex. 2 at 2.) The doctor neither verified nor contradicted the
possibility that the claimant was bitten by spiders, writing, "It is not
really clear what the inciting event was. Mr. Peters feels it was spider
bites." (Id. at 4.)

¶15 At trial the claimant testified
that he believes that spiders were in overshoes. He conceded that he could
also have been bitten by spiders while sleeping.

¶16 The claimant has failed
to persuade me on a more-likely-than-not basis that his cellulitis was
due to being bitten by spiders at work. Certainly, it is possible that
he was, but a mere possibility is insufficient to establish that an industrial
accident occurred. His hypothesis is no more likely than his being bitten
in his sleep, especially since he did not notice any spiders while working.
Moreover, medical opinion relating his bacterial infection to spider bites
is lacking.

CONCLUSIONS OF LAW

¶17 This case is governed by
the 2003 version of the Montana Workers' Compensation Act since that was
the law in effect at the time of the claimant's industrial accident. Buckman
v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380,
382 (1986).

¶19 The claimant has failed
to carry his burden of proving he was injured at work.

JUDGMENT

¶20 The claimant has failed
to establish on a more-likely-than-not basis that he was injured at work.
Therefore, he is not entitled to workers' compensation benefits. His petition
is dismissed with prejudice.

¶21 This JUDGMENT is certified
as final for purposes of appeal.

¶22 Any party to this dispute
may have twenty days in which to request a rehearing from these Findings
of Fact, Conclusions of Law and Judgment.